(03HDC06095, 21 December 2004)

A 30-year-old woman consulted a
surgeon about a lump in the right side of her neck, in the
posterior triangle near the sternomastoid muscle. Arrangements were
made for the gland to be excised and investigated. Several days
after her stitches were removed, the woman presented to her GP
complaining that a lump at the wound site was becoming
progressively bigger and more painful, and she was feeling
generally unwell.

The woman was referred to a public hospital, where arrangements
were made to explore the wound and drain it if necessary. The
surgical plan was agreed on by the consultant and registrar, and
the registrar obtained the patient's informed consent. A note on
the consent form stated that information had been given on the risk
of damage to surrounding structures. The case was handed over to
the night registrar, who again gave the woman information,
"including a small risk of nerve damage". The woman disputed this,
and said that no one told her of a risk of nerve damage.

Exploratory surgery was performed at 1.22am, with no abscess found
and dense scar tissue noted. After the surgery the woman suffered
from severe pain and numbness down the right side of her cheek, jaw
line, neck and shoulder.

She complained that adequate pain relief was not provided, and the
attitude of the nurses was poor. Several days after the surgery,
with no improvement in her condition and no evidence of infection,
the woman was reviewed by a neurologist, who noted that it was
likely she had suffered an injury to her right spinal accessory
nerve. Subsequent tests and scans confirmed the suspicion. She was
transferred to another hospital and had the severed nerve repaired
microsurgically.

After her eventual discharge, the woman complained of a lack of
support and follow-up care. She continues to suffer from ongoing
incapacity and loss of career opportunities as a result of the
damage to her nerve.

The Commissioner's independent advisor and ACC's advisor both felt
that the registrar should have tried to identify the nerve. On
opening the wound and realising that no infection was present, the
registrar should have been aware that the dense scar tissue he
found could have altered the anatomy of the neck considerably. At
this point he would have been wise to abandon the procedure or
contact the consultant. Although both advisors noted that it would
have been difficult to identify the nerve, the registrar should
still have attempted to do so. This failing amounted to a breach of
Right 4(1).

The hospital was not found in breach of Right 6(1)(b), as the
Commissioner was satisfied that the risk of nerve damage was
explained to the patient. However, the Commissioner reiterated
concerns expressed by his advisor and the Medical Council over
non-urgent surgery being performed at such a late hour. The risk of
error is likely to be heightened when surgery is undertaken during
night hours, with reduced back-up available, and patients should
not be exposed to this additional level of risk unless the surgery
is urgent and cannot be safely postponed.